19860630 TZHC Tanga

IN TI-IE HIGH COURT OF TANZANIA AT TANGA APPELL'ITE JURISDIC'::'ION \ . HIGH COURT CRIMINAL· APP~.AL NO. 31 OF 1985 ORIGINAL CRIMINAL CASE NO,1OO OF 1984 OF THE DISTRICT COURT OF HANDENI DISTRICT AT HJ\NDENI BEFORE: J. M,B. MFUKO ES(). PR INC. DISTRICT MAGISTRATE BAK.AR I SELBM.ANI MT OA • ·~ , , • • • • • • • .KPPELLANT . ( ORIGINAL ACCUSli'D) VERSUS ,. THE RE~: UBLIC •••••••••••••••• , •• RESPONDENT ( ORIGINAL PROSECUTOR) J U D G E .M E N T SISYA J.: This appeal raisef, simple factual issues which rest wholly on the question of cre&.ibili ty of witn~sses. PW 2; Bakari Mohamed Salim, swore tl-:.at he saw this appellant take the motor I from a place where it was hidden in the bush and put it on his head. He, _Le. appellant, moved five paces and then Bakari fired a wa111ing shot and ordered the appellant not to move. The said motor was stolen at Kivesa 1B' village earlier that morning. The appellant pleaded with Bakari not to shoot and he added that he was prepared to serve a. term o:r imprisonment• After his apprehens:i.on the appellant was brought before the Ji:asiStan~ Manager of Handeni Develop~ent Corporation (HA.DECO), one Salim Mohamed (PW 3). When asked the appellant admitted to Salim (PW 3) that he stole the motor, which, incidentally, was property of HADECO. In his defence at the trial the appellant stated that he was simply passing on his way to the shamba when he heard a .eun shot. When he stopped he was surprised to see on angry and armed Bak.ari (PW 3) who then ordered him to oarry a motor .. which was lying clos,e to a footpath. I 11 '1 I~ - ·~i~'!~' --- ... ~ .. ··11 · sf 2 The learned trial magistrate was: not :1-mpressed by the defence 1· I, ;i story which he then rejected out::".'ighto ,1 co not hesitate to 1\ say that he was right because the acfenc,e story sounds patently ·I falseo The same does not raise even the s~igbtest doubt in my mind either. •I On the other hand the learned trial magistrat2 accepted the evidence of PW 2 and PV 3 who are the,[ Principal witnesses in the I , ·I case and I cannot say -,hat in so doing he erred n I too find the ,, ,, evidence of these witmsses credible and, cogent,, i I ·. In his petition 01 app-eal the appellan-~ does not raise any- .. I thing new except make }' ,.-.ot,.:nt."\~'·'~"·, ... ,...~ ,..,i'"' -',,,•~M,,_-.,.,,.. 0 • 'l'riese '1! • I. too do not raise any dcubt in my mind~ • ·- 11 i On my evaluation cf the evidence ;\1 am sattsfied, as was I 11 • ' was"fully ·and', suf'.ficie:1~1;1· estab:..:..shed" -~ jl ', r• · f " '' • I '1 1 , 1•; As regard·s sentew: 1, the value of, the stn113n motor was The appellant is I, :;1erefore 1 do not &8;'.) any jw:;tification of I imposing a sentence· h:t.f1er than the mhimum which? in ·my view, · ts·' 'B'uff'icient to me·et .;.'.le justice of t6.e··,.·c·ase,. In the event the sentenc-e of Si:X: ·ye"ii.rs L:npriSODI"tent ro:Jt:~ed out' ·to the appellant '.: I ls·:reduced to' 'a'>ter"in o:? imprisonment of f~-;<:: ($j years, which is • - w • • • 1986. , .,. )